robert a. cantore (california bar no. 127462) · 2017. 6. 19. · liforn. ia bar no. 127462) jay...

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POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CASE NO. 08-2068-PSG (FFMX) CLASS CERTIFICATION

ROBERT A. CANTORE (California Bar No. 127462)JAY SMITH (California Bar No. 166105) JOSHUA F. YOUNG (California Bar No. 232995) GILBERT & SACKMAN A LAW CORPORATION 3699 Wilshire Boulevard, Suite 1200 Los Angeles, California 90010 Telephone: (323) 938-3000 Fax: (323) 937-9139 [email protected]; [email protected]; [email protected] Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STEEL, PAPER & FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL & SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, on behalf of its members employed by defendants, and RAUDEL COVARRUBIAS, DAVID SIMMONS AND STEPHEN S. SWADER, SR., individually and on behalf of all similarly situated current and former employees,

Plaintiffs,

v.

CONOCOPHILLIPS COMPANY and DOES 1 through 10, inclusive,

Defendants.

Case No. CV08-2068 PSG (FFMx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Hon. Philip S. Gutierrez Date: January 12, 2009 Time: 1:30 p.m. Place: Courtroom 790 Date Action Filed: February 15, 2008Date Action Removed: March 27, 2008

Case 2:08-cv-02068-PSG-FFM Document 40 Filed 12/15/08 of 29

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POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR CASE NO. 08-2068-PSG (FFMX) CLASS CERTIFICATION

ii

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................. 1

II. FACTUAL SUMMARY OF THE ACTION ...................................................... 3

III. ARGUMENT ....................................................................................................... 8

A. Standards for Deciding This Motion ......................................................... 8

B. The Proposed Class Meets All the Requirements of Rule 23 ................... 8

1. Numerosity ....................................................................................... 9

2. Commonality .................................................................................... 9

3. Typicality ....................................................................................... 10

a. Named Plaintiffs’ Claims and Defenses are Typical of the Claims or Defenses of the Class. .................................... 11

b. USW, as an Organizational Plaintiff, Meets the Typicality Requirements for Certification ................................ 12

c. Typicality is Satisfied Where Injunctive and Declaratory Relief is Sought ..................................................... 14

4. Adequacy of Representation .......................................................... 14

C. Certification is Warranted Under Rule 23(b)(3) ..................................... 15

1. Common Issues Predominate ......................................................... 15

a. Common Issues Predominate With Respect to Plaintiffs’ Claims asserted under Section 226.7 and Wage Order 1-2001. ................................................................. 16

b. Common Issues Predominate With Respect to Plaintiffs’ UCL Claims. ............................................................ 21

2. A Class Action is Superior to Individual Adjudication ................. 22

a. Superiority is Present ........................................................... 22

b. Trial of the Class Claims Would be Manageable ................ 23

D. Certification is Also Warranted Under Rule (b)(2) ................................. 24

IV. CONCLUSION ................................................................................................ 25


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TABLE OF AUTHORITIES

CASES Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) ................................................ 12 Arnold v. United Artists Theater Circuit, Inc., 158 F.R.D. 439 (N.D.

Cal. 1994). .......................................................................................................... 9 Associated Builders and Contractors, Inc. v. San Francisco County

Bldg. & Constr. Trades Counsel, 87 Cal. Rptr. 2d 654 (Cal. 1999) ................ 12 Bank of the West v. Sup. Ct., 2 Cal. 4th 1254 (1992) ...................................... 21, 22 Brinker Restaurant Corp. v. Superior Court, 165 Cal. App. 4th 25

(2008) .................................................................................................... 19, 20, 21 Brotherhood of Teamsters v. Unemployment Ins. Appeals Bd., 190 Cal.

App. 3d 1515 (1987) ......................................................................................... 13 Brown v. Federal Express Corp., 249 F.R.D. 580 (C.D. Cal. 2008) .................... 18 California Rural Legal Assistance v. Legal Services Corp., 727 F.

Supp. 553 (N.D. Cal. 1989) ........................................................................ 12, 19 Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir.

2000) ................................................................................................................. 21 Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949 (2006) .................. 19, 20 Comm. on Children’s Television, Inc. v. Gen. Foods Corp., 35 Cal. 3d

197 (1983) ......................................................................................................... 21 Crawford v. Honig, 37 F.3d 485 (9th Cir. 1994) ................................................... 15 Dukes v. Wal-Mart Stores, Inc., 22 F.R.D. 137 (N.D. Cal. 2004) .......................... 8 Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007) ........................... 8, 10, 14 Fisher v. Virginia Elec. and Power Co., 127 F.R.D. 201 (E.D. Va.

2003) ................................................................................................................... 9 Fletcher v. Sec. Pac. Nat'l Bank, 23 Cal. 3d 442 (1979) ....................................... 22 Harris v. Palm Springs Alpine Estate, Inc., 329 F.2d 909 (9th Cir.

1964). .................................................................................................................. 9 Hunt v. Wash. State Apple Adver. Comm’n., 432 U.S. 333 (1977) ................. 12, 13 In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493 (1996) .......... 9, 23 In re Wells Fargo Home Mortg. Overtime Pay Litig., No. 06-1770,

2007 WL 3045995 (N.D. Cal. Oct. 18, 2007) .................................................. 16 Jimenez v. Domino’s Pizza, 238 F.R.D. 241 (C.D. Cal. 2006) ......................... 9, 16 Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir. 1982) ......................... 10 Kraus v. Trinity Mgmt. Servs., 23 Cal. 4th 116 (2000) ......................................... 22 Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las

Vegas Sands, Inc., 244 F.3d 1152 (9th Cir. 2001) ........................................... 16 Mass. Mut. Life Ins. Co. v. Sup. Ct., 97 Cal. App. 4th 1282 (2002) ..................... 21


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Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ....................................................... 9 Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001) ....................................... 14 Nordquist v. McGraw-Hill Broadcasting Co., Inc., 32 Cal. App. 4th

555 (1995) ......................................................................................................... 16 O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311 (C.D. Cal. 1998) .................... 11 Perez v. Safety-Kleen Sys., Inc., 253 F.R.D. 508 (N.D. Cal. 2008) ...................... 18 Perez v. Saftety-Kleen Systems, 2007 WL 1848037 (N.D. Cal. 2007) .................. 20 Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529 (S.D. Cal. 2008) ................. 18 Maddock v. KB Homes, Inc., 248 F.R.D. 229 (C.D. Cal. 2007) ............................. 9 Slaven v. BP Am., Inc., 190 F.R.D. 649, 655 (C.D. Cal. 2000) ............................. 10 Social Servs. Union, Local 535, Serv. Employees Int’l. Union, AFL

CIO v. County of Santa Clara, 609 F.2d 944 (9th Cir. 1979) .................... 12, 14 Stevens v. Sup. Ct., 75 Cal. App. 4th 594 (1999) .................................................. 21 United Union Roofers v. Ins. Corp. of Am., 919 F.2d 1398 (9th Cir.

1990) ................................................................................................................. 13 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) .................................................... 24 Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (C.D. Cal. 2005) .............. 9, 25 Watkins v. Ameripride Servs., 375 F.3d 821 (9th Cir. 2004). ............................... 16 Zinser v. Accufix Research Inst. Inc., 253 F.3d 1180 (9th Cir. 2001) ............. 16, 24 STATUTES Cal. Code Regs. Tit. 8, §§ 11010-11170 ............................................................... 16 California Labor Code § 226.7 ....................................................................... passim California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200

et seq. .................................................................................................................. 2 California IWC Wage Order 1-2001 ........................................................... 2, 17, 22

RULES Fed. R. Civ. P. 23 ............................................................................................ passim Fed. R. Civ. P. 23 Rule 30(b)(6) .............................................................................. 3


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I. INTRODUCTION

Unless a catastrophic event or maintenance repairs shut down a facility, an

oil refinery operates on a continuous basis (24 hours a day/7 days a week/ 365 days

a year). The refineries at center of this case are no exception. Needless to say, a

continuous operation necessitates scheduling employees on the same basis.

Employees responsible for the continuous operation of an oil refinery must be on

constant watch, and this fact resulted in Defendant’s unlawful denial of a meal

period at the three refineries covered under a contract between Defendant and

Plaintiff USW.1

As outlined below, the Named Plaintiffs (who currently and in the past

worked as operators) and the Class they seek to represent work continuous shifts.

This means that they are paid for all scheduled hours and are expected to work the

entire shift. Named Plaintiffs do not dispute that they and class members are

allowed to eat a meal while on duty. It is also undisputed that the Defendant takes

no steps to ensure that the Plaintiffs and Class members take a 30 minute meal

period (i.e., Defendant does not provide relief, does not track meal periods, does not

require operators and lab personnel to record meal periods etc.). Thus, the central

and overriding issue in this case is whether Defendant complies with California law

by simply “allowing” or “permitting” Plaintiffs and Class Members to eat a meal

during hours worked. Plaintiffs contend that this practice does not comply with the

meal period requirement for three reasons: (1) to constitute a meal period, the

employee must be relieved of all duties (i.e., off duty); (2) even if the Defendant

shows that the “on duty” meal in this case satisfies California law, it fails to ensure

that employees take a 30 minute meal period; and (3) under the most liberal

interpretation of the meal period statute and regulation, the Defendant’s complete 1Plaintiff United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC will be referred to herein as “USW”. Individual Plaintiffs Raudel Covarrubias, David Simmons, and Stephen S. Swader will be collectively referred to herein as the “Named Plaintiffs.”


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absence of a written policy and the practice of letting employees decide when or

whether to take a meal period fails to satisfy the obligation of providing a meal

period.

This action is particularly suited to class treatment given that the relevant

facts are largely undisputed, and the outcome will hinge on a common legal

question: whether Defendants violated California law regulating meal periods when

Named Plaintiffs and Class members were only allowed to eat while they were on-

duty. Though the Court should not reach this legal issue at this time, the meal

period claims of Named Plaintiffs and putative class rest on the same legal theory

and a common set of facts.

The USW and Named Plaintiffs seek certification of a class under Federal

Rules of Civil Procedure 23(b)(2) and (b)(3) for claims asserted under California

Labor Code § 226.7 (“Section 226.7”), Section 11 of the Industrial Welfare

Commission Wage Order No. 1-2001 (“Wage Order 1-2001”) and the California

Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. (“UCL”). The

Named Plaintiffs seek certification of a class consisting of the following hourly

employees:

All former, current, and future non-exempt hourly employees of Defendant ConocoPhillips who, at any time since February 15, 2004, worked as an Operator or in the laboratory on a shift schedule at a ConocoPhillips petroleum refinery located in Los Angeles, Santa Maria or Rodeo, California.

As argued below, this class definition specifies an appropriate class because

all the requirements of Rule 23 (a) and Rule 23 (b)(2) and/or (b)(3) are satisfied.

Indeed, given the common work schedule, common nature of the job and the

common working conditions (i.e., all class members are covered under the same

collective bargaining agreement), a uniform resolution of the meal period issue is

appropriate.


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II. FACTUAL SUMMARY OF THE ACTION

ConocoPhillips, an international oil company, owns and/or operates three

petroleum refineries located in Los Angeles, Santa Maria, and Rodeo, California

(“the Refineries”). See Class Action Complaint filed February 15, 2008 (“Compl.”)

at ¶ 9. The Refineries operate three-hundred and sixty-five days a year, twenty-four

hours a day. Covarrubias Decl. at ¶ 2 (Cantore Decl., Ex. B); Muto Decl. at ¶ 3

(Cantore Decl., Ex. G); Bowman Decl. at ¶ 2 (Cantore Decl., Ex. E); Swader Decl.

at ¶ 4 (Cantore Decl. Ex. D); Prosser Depo. at 48 (Cantore Decl. Ex. H).2

USW is a labor organization that represents employees in the state of

California and, among other things, deals with employers concerning labor

disputes, wages, rates of pay, hours of work and other terms and conditions of

employment. Compl. at ¶¶ 6, 6.1. USW represents all operations and laboratory

employees that work at the Refineries. Muto Decl. at ¶ 2; Norris Decl. at ¶ 2

(Cantore Decl., Ex. F); Swader Decl. at ¶ 2. USW and ConocoPhillips are also

parties to a series of collective bargaining agreements covering a bargaining unit of

employees that are employed by ConocoPhillips at the Refineries. Compl. at ¶ 10;

Collective Bargaining Agreement (“CBA”) (Cantore Decl., Ex. A). All USW

represented employees working at the Refineries, and all members of the proposed

Class, work under the same collective bargaining agreement that sets forth the

terms and conditions of employment for all covered employees. Prosser Depo. at

20:1-12; Norris Decl. at ¶ 2; Swader Decl. at ¶ 2.

Plaintiff Raudel Covarrubias is employed as an Operator at the Los Angeles

ConocoPhillips refinery. Covarrubias Decl. at ¶ 1. Plaintiff Stephen Swader, Sr., is

employed as an Operator at the Santa Maria ConocoPhillips refinery. Swader Decl.

at ¶ 1. Plaintiff David Simmons is employed as an Operator at the Los Angeles

refinery, though his most recent assignment is to act as the Union’s Health & Safety 2 Patrick Prosser is the Human Resources Manager for Defendant ConocoPhillips. ConocoPhillips designated Prosser to testify on its behalf as a corporate representative pursuant to Rule 30(b)(6), Fed. R. Civ. P.


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Representative. Simmons Decl. at ¶ 1 (Cantore Decl., Ex. C). All Named Plaintiffs

are current employees at one of the Refineries, are members of USW, and are

“employees” as defined in Wage Order 1-2001. Compl. at ¶ 7.

Because the refining of crude oil at Defendant’s facilities is a continuous

production process, the Defendant needs employees to operate and/or monitor the

process at all times. Prosser Depo. at 61-64. The collective bargaining agreement

that covers Plaintiffs’ employment at the Refineries contains an Operator job

classification. Prosser Depo. at 21. Individuals working as Operators at the

Refineries are “shift employees” or “shift workers” as that term is defined in the

collective bargaining agreement. Norris Decl. at ¶ 3; Muto Decl. at ¶ 3. Although

some Operators work eight hour shifts, most of the Operators work twelve hour

shifts. Norris Decl. at ¶ 3; Covarrubias Decl. at ¶ 2; Bowman Decl. at ¶ 2; Muto

Decl. at ¶ 3; Swader Decl. at ¶ 3; Prosser Depo. at 48. All Operators regardless of

the duration of their shifts are treated the same way with respect to meal periods.

Norris. Decl. at ¶ 3.

The twelve hour shifts are from 6:00 a.m. to 6:00 p.m. (Day Shift) and 6:00

p.m. to 6:00 a.m. (Night Shift). Muto Decl. at ¶ 2; Covarrubias Decl. at ¶ 3; Norris

Decl. at ¶ 3; Simmons Decl. at ¶ 2; Swader Decl. at ¶ 3 Prosser Depo. 48-49.

Operators working these shifts are paid for twelve hours of work during that period

of time. Prosser Depo. at 49. ConocoPhillips keeps records of the Operators’ time

through a software program called Schedule Express which is integrated with a

timekeeping system called SAP HR CATS. Prosser Depo. at 100-101. For each

shift an Operator is scheduled to work, a supervisor will enter 12 hours into the

SAP HR CATS timekeeping system and the Operator is paid for the all hours

scheduled. Prosser Depo. at 101-102.

The general duties of Operators are the same at all of the Refineries. Prosser

Depo. at 27-28; Bowman Decl. at ¶ 2. Although there are two types of Operators at

the Refineries, Console or Board Operators and Field Operators, all Operators


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monitor the same equipment and processes and they essentially conduct the same

type of work. Prosser Depo. at 27-28; Muto Decl. at ¶¶ 5-7; Covarrubias Decl. at

¶¶ 3-4; Norris Decl. at ¶¶ 5-7; Swader Decl. at ¶ 6. All Operators are responsible

for monitoring tank, tower and oil levels, temperatures for equipment and

processes, flows for processes and lubrication, and pressure readings for different

processes and equipment. Covarrubias Decl. at ¶ 3; Bowman Decl. at ¶ 2; Swader

Decl. at ¶ 5; Muto Decl. at ¶ 4; Norris Decl. at ¶ 4. All Operators also make

adjustments to processes and equipment as needed. Norris Decl. at ¶ 4;

Covarrubias Decl. at ¶ 3; Simmons Decl. at ¶ 2; Muto Decl. at ¶ 4; Swader Decl. at

¶ 5. All Operators work out of a control building where they gather and work.

Prosser Depo. at 59.

The main difference between Field Operators and Board Operators is that

Board Operators monitor information and make adjustments to processes from a

computer console while Field Operators normally make manual adjustments to the

production process from the field. Norris Decl. at ¶¶ 5-6; Covarrubias Decl. at ¶¶

3-4; Muto Decl. at ¶¶ 5-6; Swader Decl. at ¶¶ 6-7. Specifically, Board Operators

remain within the control building facility and monitor the process from within that

facility. Prosser Depo. at 59. Board Operators give direction to the Field

Operators, directly or by radio. Prosser Depo. at 59. Field Operators and Board

Operators constantly coordinate their activities and they work together as a team to

ensure that the refining process is working efficiently. Muto Decl. at ¶ 7; Swader

Decl. at ¶ 8; Simmons Decl. at ¶¶ 2-3; Covarrubias Decl. at ¶ 4; Norris Decl. at ¶ 6.

All Operators working a shift schedule are under the same shift supervision,

have the same work rules applied to them, are covered under the same bargaining

agreement and are treated the same with respect to meal periods. Muto Decl. at ¶ 7;

Swader Decl. at ¶ 10; Norris Decl. at ¶ 9; Covarrubias Decl. at ¶ 6; Simmons Decl.

at ¶ 4.

Operators remain “on duty” during the entirety of their shifts. Prosser Depo.


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at 62; Muto Decl. at ¶ 9; Swader Decl. at ¶ 11; Norris Decl. at ¶ 10; Bowman Decl.

at ¶ 3; Simmons Decl. at ¶ 5; Covarrubias Decl. at ¶ 6. Operators are also in

constant “radio communication” throughout their shift so that they can respond to

any problems that arise during their shift. Prosser Depo. at 66. Operators have

responsibility to stay “in communication” during their shift, and are expected to

have a radio with them. Prosser Depo. at 83, 95. Operators are subject to discipline

for not responding to their radio. Prosser Depo. at 94. Operators must remain

within their units during the entirety of their shifts unless they are given permission

to leave the unit by the head operator. Prosser Dep. at 61-63, 109-110. Therefore,

Operators are not allowed to leave the Refinery or even their units to take a meal

break. Prosser Dep. at 62-64. Rather, if and when operators eat during their shifts,

they are required to eat in their unit. Prosser Dep. at 62-64.

In addition, there are audible alarms set up on the consoles that indicate that

something in the refining process may need attention. Prosser Depo. at 78.

Operators must respond to these alarms to determine if something in the refining

process does, in fact, need attention. Prosser Depo. at 78.

Every control building facility has kitchen facilities and an eating area in

their work environment where they can eat, and the Operators decide if and when

they will eat during their shift. Prosser Depo. at 68, 73, 125, 143. However, because

Operators are on duty throughout the entirety of their shift, ConocoPhillips does not

provide Operators with a 30 minute meal period during which they are relieved of

all duties and no one ever actually times how long an operator gets to eat a meal.

Muto Decl. at ¶ 9; Norris Decl. at ¶ 10; Covarrubias Decl. at ¶ 8; Simmons Decl. at

¶ 5; Swader Decl. at ¶ 13; Prosser Depo. at 81. There is no “formalized procedure”

for providing Operators with either a first or second meal period. Prosser Depo. at

122. Operators working a twelve hour shift receive neither a first nor second meal

period during which they are relieved of all duties. Muto Decl. at ¶ 9; Norris Decl.

at ¶ 10; Bowman Decl. at ¶ 3; Simmons Decl. at ¶ 5; Swader Decl. at ¶ 11;


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Covarrubias Decl. at ¶ 8. Operators working an eight hour shift do not receive a 30

minute meal period during which they are relieved of all duties. Muto Decl. at ¶ 9;

Norris Decl. at ¶ 10; Simmons Decl. at ¶ 5; Swader Decl. at ¶ 11; Covarrubias Decl.

at ¶ 8. No written policy exists that sets forth a meal period for Operators,

ConocoPhillips does not keep any records of when Operators eat during their shifts,

and there is no practice or custom of providing Operators with a 30 minute meal

period during which they are relieved of all duties. Muto Decl. at ¶ 9; Swader Decl.

at ¶ 12; Norris Decl. at ¶ 10; Covarrubias Decl. at ¶ 8; Bowman Decl. at ¶ 3;

Simmons Decl. at ¶ 5; Prosser Depo. at 115. There is no Operator at any of the

Refineries whose job it is to relieve Operators for meal periods. Prosser Depo. at

86-87.

All Operators are supervised by area supervisors or foremen. Muto Decl. at ¶

8; Covarrubias Decl. at ¶ 7; Norris Decl. at ¶ 8 Swader Decl. at ¶ 9. There are no

separate lines of supervision of Field and Console Operators and the supervisors

apply the same work rules to all Operators. Muto Decl. at ¶ 8; Covarrubias Decl. at

¶¶ 6-7; Norris Decl. at ¶ 8; Swader Decl. at ¶ 9; Simmons Decl. at ¶ 4. These

supervisors do not provide Operators with a 30 minute meal period during which

they are relieved of all duties. Muto Decl. at ¶ 9; Swader Decl. at ¶ 11. These

supervisors are not instructed to designate a time for during with employees must

take breaks and meal period as the employees take their meal breaks when they find

it convenient for themselves. Prosser Depo. at 143.

Laboratory employees manage the quality control of the refinery process.

Prosser Depo. at 32. Laboratory employees will analyze the samples that are

provided to them by Operators and run tests on those samples in the laboratories

that are on-site. Prosser Depo. at 32. Laboratory employees working a “shift

schedule”, or a twelve hour shift, work from 6:00 a.m. to 6:00 p.m. and are paid for

twelve hours of work. Prosser Depo. at 47, 51, 88-89.

ConocoPhillips has not requested that any collective bargaining unit


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employees sign a document waiving any meal period or agreeing to an “on duty” or

“on the job” meal period. Muto Decl. at ¶ 11; Covarrubias Decl. at ¶ 10; Swader

Decl. at ¶ 14; Norris Decl. at ¶¶ 11-12. ConocoPhillips and USW have never

entered into an agreement regarding “on duty” meal periods. Muto Decl. at ¶ 12;

Swader Decl. at ¶ 15. No Refinery employees have ever signed any agreement to

waive meal periods. Prosser Depo. at 132-133. ConocoPhillips does not post any

wage orders at the Refineries. Prosser Depo. at 135.

III. ARGUMENT

A. Standards for Deciding This Motion

In ruling on a motion for class certification the district court must consider

whether the party seeking class certification can establish the Rule 23 requirements,

but any issues relating to “the ultimate merits of the case … ‘should properly be

addressed by a jury considering the merits rather than a judge considering class

certification.’” Dukes v. Wal-Mart, Inc. (“Dukes II”), 509 F.3d 1168, 1177-78 (9th

Cir. 2007) (quoting Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 166 (N.D. Cal.

2004)). However, evidence which “relates to the underlying merits of the case” can

only be considered by the Court at the class certification stage to the extent that

such evidence also “goes to the requirements of Rule 23.” Id. at 1177 n.2.

Applying these standards, the alleged facts and evidence supporting the claims

demonstrate that this case is well-suited for resolution on a class-wide basis.

B. The Proposed Class Meets All the Requirements of Rule 23

Under Rule 23, the Court should certify a proposed class when the class

meets all the prerequisites of Rule 23(a)—numerosity, commonality, typicality, and

adequacy of representation—and at least one of the requirements of Rule 23(b). All

four Rule 23(a) prerequisites and the requirements for class certification under Rule

23(b)(2) and (b)(3) are satisfied in this case. Because class certification is

permissible under both of these sub-parts, the Court may choose to order

certification under 23(b)(2) and (b)(3), or just one of those provisions. In re


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NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 515 (S.D.N.Y. 1996)

(dual certification is permissible).3

1. Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all

members is impracticable.” However, “[i]mpracticability does not mean

‘impossibility’, but only the difficulty or inconvenience in joining all members of

the class.” Harris v. Palm Springs Alpine Estate, Inc., 329 F.2d 909, 913-14 (9th

Cir. 1964). Plaintiff need not state the exact number of potential class members and

a specific minimum number is not required. Arnold v. United Artists Theater

Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994).

There are approximately six hundred (600) members in the proposed Class.

Prosser Depo. at 112. Therefore, the size of the Class makes joinder impracticable.

See Maddock v. KB Homes, Inc., 248 F.R.D. 229, 237 (C.D. Cal. 2007) (numerosity

requirement satisfied where class consisted of “at minimum” 100 employees);

Jimenez v. Domino’s Pizza, 238 F.R.D. 241, 247 (C.D. Cal. 2006) (numerosity

present where class consists of 160 employees); Wang v. Chinese Daily News, Inc.,

231 F.R.D. 602, 607 (C.D. Cal. 2005) (numerosity present where “joinder is

impractical based solely on the fact that there are over one hundred putative class

members”). 2. Commonality Rule 23(a)(1) requires that “there are questions of law or fact common to the

class.” “Commonality focuses on the relationship of common facts and legal issues

among class members.” Dukes II, 509 F.3d at 1117. The commonality requirement 3When ordering dual certification, the Court can either certify separate 23(b)(2) and 23(b)(3) classes, with the 23(b)(2) class being mandatory and the 23(b)(3) class receiving class notice and an opportunity to opt out of the damages claims asserted in the case (“divided certification”), or certify a single class pursuant to 23(b)(2) but order that absent class members be notified of the class action and have an opportunity to opt out of the case (“composite certification”). Molski v. Gleich, 318 F.3d 937, 947 (9th Cir. 2003) (court has discretionary authority to order notice and opportunity to opt out when certifying class under 23(b)(2)); Fisher v. Virginia Elec. and Power Co., 127 F.R.D. 201, 214 (E.D. Va. 2003).


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is generally construed liberally as the existence of only a few common legal and

factual issues may satisfy the requirement. Jordan v. County of Los Angeles, 669

F.2d 1311, 1320 (9th Cir. 1982) This requirement is “qualitative rather than

quantitative,” Dukes II, 509 F.3d at 1177, as "there must only be one single issue

common to the class." Slaven v. BP Am., Inc., 190 F.R.D. 649, 655 (C.D. Cal.

2000).

Each class member was employed in one of Defendant’s Refineries and was

not provided with meal periods as required under California law. As such, there are

numerous questions of law and fact common to the Class including, inter alia, the

following:

a. Whether Defendant failed to provide Named Plaintiffs and members of

the Class with meal periods in accordance with California law;

b. Whether Defendant failed to provide Named Plaintiffs and members of

the Class with meal periods in accordance with California law when Named

Plaintiffs and members of the class are on duty during the entirety of their shift;

c. Whether Defendant maintains or has maintained common policies that

failed to properly compensate Named Plaintiffs and members of the Class for

missed meal periods;

d. Whether the Defendants failed to keep accurate records of the meal

periods provided to Named Plaintiffs and members of the class in accordance with

applicable California law; and

e. Whether the Plaintiffs and Class members are entitled to an injunction

requiring Defendant to adopt a meal period policy consistent with California law.

3. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative

parties be typical of the claims or defenses of the class.” This requirement is

satisfied if the representatives’ claims “are reasonably coextensive with those of

absent class members [as] they need not be substantially identical.” Hanlon v.


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Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). As long as both the

plaintiffs’ and Class members’ claims arise from the same course of conduct and

are based on the same legal theory, typicality is shown. O’Connor v. Boeing N.

Am., Inc., 184 F.R.D. 311, 332 (C.D. Cal. 1998).

a. Named Plaintiffs’ Claims and Defenses are Typical of the Claims

or Defenses of the Class.

Named Plaintiffs’ claims are based upon the same facts and legal theories as

the claims of all Class members. As set forth in the Complaint and the

accompanying Declarations, Plaintiffs’ claims and those of the Class members are

all based on allegations that the Defendant did not provide them with meal periods

as required under California law. These allegations fall into two groups. First, the

Named Plaintiffs work or have worked as operators during the relevant period. The

undisputed testimony is that during the class period, all class members worked a

continuous shift (i.e., there was no unpaid period during the shift).4 As operators,

the Named Plaintiffs (like all class members) worked continuous 12 hour shifts and

were required to eat meals while on duty. Thus, if Defendant’s conduct violates the

meal period requirement because it failed to provide a 30 minute meal period

during which the Named Plaintiffs and Class members were off duty, then Named

Plaintiffs and other Class members suffered the same injury.

Second, it is undisputed that the Defendant did not take affirmative steps to

provide Named Plaintiffs and Class members with a 30 minute meal period. The

Defendant simply allows the Named Plaintiffs and Class members to determine at

their discretion whether to eat a meal during the shift. There is no effort to track

whether employees are taking meal periods or to provide relief so that employees

can take a meal period. If the failure to affirmatively provide a meal period

4 This is in marked contrast to the normal schedule that maintenance employees worked during the class period. Under the collective bargaining agreement, maintenance employees and all day employees have a 30 minute unpaid period during which they are relieved of all duties. Prosser Depo. at 50.


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violates California’s meal period statute, then the Named Plaintiffs and Class

members have suffered the same injury.

Finally, if Named Plaintiffs prove Defendant is liable, they are entitled to the

same remedies to which all Class members are entitled under the relevant

California statutes and any injunctive relief will affect them in a similar manner. As

each Class member’s claims arise from the same course of factual events and

involve similar legal arguments to establish Defendant’s liability, plaintiffs clearly

satisfy the typicality requirement. Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.

2001).

b. USW, as an Organizational Plaintiff, Meets the Typicality

Requirements for Certification

USW, as an organizational plaintiff, meets the typicality requirement for

class certification. A Union has standing to sue as a representative of union

members, and the fact that USW is not, strictly speaking, a “member” of the class

does not prevent the union from satisfying the typicality requirement. Social Servs.

Union, Local 535, Serv. Employees Int’l. Union, AFL CIO v. County of Santa

Clara, 609 F.2d 944 (9th Cir. 1979) (union met requirements to serve as class

representative for class of union employees bringing claims for sex and wage

discrimination); California Rural Legal Assistance v. Legal Services Corp., 727 F.

Supp. 553, 554-55 (N.D. Cal. 1989). USW meets the typicality requirements

because it has general associational standing. Any organization (including a labor

union) has association standing where: (1) its members would otherwise have

standing to sue in their own right, (2) the interests it seeks to protect are germane to

the organization’s purpose, and (3) neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit. Hunt v.

Wash. State Apple Adver. Comm’n., 432 U.S. 333, 343 (1977); Associated Builders

and Contractors, Inc. v. San Francisco County Bldg. & Constr. Trades Counsel, 87

Cal. Rptr. 2d 654, 659 (Cal. 1999) (citing Brotherhood of Teamsters v.


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Unemployment Ins. Appeals Bd., 190 Cal. App. 3d 1515, 1522 (1987) as the basis

for adopting the Hunt associational standing test as California’s associational

standing test).

In Teamsters, the court held that the union met the associational standing test

set forth in Hunt and was allowed to pursue a lawsuit challenging the denial of

unemployment benefits to their members. 190 Cal. App. 3d at 1518. The court

reasoned that the first prong of the Hunt test was satisfied because the members

would clearly have had standing to make such a challenge. Id. at 1522. The court

then reasoned that benefiting union members was necessarily germane to the

interests of the unions, and that therefore the second prong of the Hunt test was

likewise satisfied. Id. The court then found that the third prong too was satisfied

because the remedy that union was seeking did not require individual participation.

Id. at 523. The court therefore concluded that the unions had associational standing

to pursue the action. Id.

The USW has associational standing to pursue their members’ claims in this

case because it satisfies the Hunt test. As in Teamsters, the first two prongs are

easily satisfied because the USW’s members would have standing to file a Section

226.7 claim and USW is acting for the member’s benefit which is necessarily

germane to USW’s interest. Likewise, here the “no participation of individual

plaintiffs required” prong is also satisfied. The monetary relief the USW seeks can

be proven without individual participation by simply applying the predetermined

damage prescribed by section 226.7 (one hour pay per missed meal period) to

ConocoPhillips own employment records.5 5 In United Union Roofers, the Court held that the third prong of the Hunt test could not be satisfied because the proof of monetary damages would require “individual Union members [to] participate at the proof of damages stage.” United Union Roofers v. Ins. Corp. of Am., 919 F.2d 1398, 1400 (9th Cir. 1990). However, the court held that “courts have not generally declared a per se rule against granting an association standing to seek money damages.” Id. Unlike United Union Roofers, the third element of the Hunt test is satisfied even though monetary damages are sought because the amount of damages sought by USW is fixed by statute.


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c. Typicality is Satisfied Where Injunctive and Declaratory Relief is

Sought

The typicality requirement is also satisfied in a case like this one, where

injunctive and declaratory relief is a significant component of the case. Obtaining

equitable relief is an important component of this litigation, particularly in terms of

declaring the rights and responsibilities of the parties under their obligations

pursuant to the UCL. See Nicholson v. Williams, 205 F.R.D. 92, 99 (E.D.N.Y.

2001) ("Typicality may be assumed where the nature of the relief sought is

injunctive and declaratory.") This is true even where, as here, the relief sought

includes a damages component. See Dukes II, 509 F.3d at 1186-89 (holding that

the size of plaintiffs’ damages request and request for back-pay did not undermine

plaintiffs’ claim that injunctive and declaratory relief predominate).

3. Adequacy of Representation

Rule 23(a)(3) permits class certification if “the representative parties will

fairly and adequately represent the interests of the class.” This element of class

certification has two parts: (1) the plaintiffs’ interests must not conflict with those

of absent class members, and (2) counsel for plaintiffs must vigorously prosecute

the action on behalf of the class. Dukes II, 509 F.3d at 1185.

There are no irreconcilable conflicts of interest or antagonistic interests

between Plaintiffs, counsel and Class members. Plaintiffs and each Class member

have a strong interest in establishing Defendant’s liability and determining whether

Defendant violated California law by failing to provide Named Plaintiffs and

members of the class with meal periods as required by California law. All Class

members share interests both in being compensated for unpaid wages and in

deterring such conduct in the future.

USW also meets the adequacy of representation requirement. The Ninth

Circuit has held a union to be adequate class representative. See Social Services

Union, Local 535, 609 F.2d at 947. Here, USW has the same interest as Named


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Plaintiffs in vigorously prosecuting this action to obtain a favorable judgment that

ConocoPhillips has violated California law regarding meal breaks. See e.g., id. at

948 (holding union adequate representative of class of employees female

employees suing for sex and wage discrimination even though union had both male

and female employees given that the union had consistently sought equal pay for

equal work on behalf of its members, and there was no evidence of conflict between

the economic interests of male and female union members). Likewise, USW does

not have any conflicts which would prohibit it from acting as a class representative.

Since there is no evidence that this lawsuit is collusive or of any substantial

antagonism between the Class members, Plaintiffs are adequate class

representatives. Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994)

Plaintiffs have also retained highly capable counsel with extensive

experience in prosecuting class litigation and/or labor and employment litigation.

See Cantore Decl. at ¶¶ 10-11 and the firms resumes attached thereto (Cantore

Decl., Exs. I & J) . All Plaintiffs’ counsel meet the requirements of Rule 23(g).

Plaintiffs' counsel have shown they are capable of, and have committed substantial

resources to, representing the Class and are fully committed to vigorously prosecute

this action on the Class’ behalf. Cantore Decl. at ¶¶ 10-11.

C. Certification is Warranted Under Rule 23(b)(3)

Once the requirements of Rule 23(a) are satisfied, Rule 23(b)(3) permits class

certification if “the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual members, and

that a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy.” Both these requirements are satisfied in this action.

1. Common Issues Predominate

The Rule 23(b)(3) predominance inquiry tests whether the proposed class is

“sufficiently cohesive to warrant adjudication by representation.” Local Joint

Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d


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1152, 1162 (9th Cir. 2001). “To establish predominance of common issues, a party

seeking class certification is not required to show that legal and factual issues raised

by the claims of each class member are identical.” In re Wells Fargo Home Mortg.

Overtime Pay Litig., No. 06-1770, 2007 WL 3045995, *6 (N.D. Cal. Oct. 18,

2007). Rather, predominance focuses on “the notion that the adjudication of

common issues will help achieve judicial economy.” Zinser v. Accufix Research

Inst. Inc., 253 F.3d 1180, 1189 (9th Cir. 2001) (internal quotations omitted). To

determine whether common issues predominate, the “Court must first examine the

substantive issues raised by Plaintiffs and second inquire into the proof relevant to

each issue.” Jiminez v. Domino’s Pizza, Inc., 238 F.R.D. 241, 251 (C.D. Cal.

2006).

a. Common Issues Predominate With Respect to Plaintiffs’

Claims asserted under Section 226.7 and Wage Order 1-2001.

Plaintiffs allege that Defendant failed to provide Named Plaintiffs and Class

members with meal periods as required under California law. The applicable law is

set forth in the California Labor Code and in Wage Orders promulgated by the

Industrial Welfare Commission (“IWC”).6 California Labor Code Section 226.7

provides: (a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.

6The IWC is a quasi-legislative body authorized by statute to promulgate orders regulating wages, hours, and conditions of employment for employees throughout California. Nordquist v. McGraw-Hill Broadcasting Co., Inc., 32 Cal. App. 4th 555 (1995). The IWC has promulgated seventeen different “wage orders” that apply to various groups of employees. Cal. Code Regs. Tit. 8, §§ 11010-11170. IWC wage orders are “quasi-legislative regulations that are to be interpreted in the same manner as statutes.” Watkins v. Ameripride Servs., 375 F.3d 821, 825 (9th Cir. 2004).


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Subdivision 11 of Wage Order 1-2001 provides in relevant part:

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee. In the case of employees covered by a valid collective bargaining agreement, the parties to the collective bargaining agreement may agree to a meal period that commences after no more than six (6) hours of work. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provision of this order, the employer shall pay the employee (1) hour of pay at the employee’s regular rate of compensation for each work day that the meal period is not provided. Common issues predominate as to the claims asserted on behalf of the Class

under Section 226.7 and Wage Order 1-2001 as the claims asserted can be proven

on a class wide basis with proof that is common to all class members. First, as

noted above, it is undisputed that Named Plaintiffs and Class members are required

to eat meals while on duty. If this practice violates California law, then Defendant

is liable to Named Plaintiffs and all Class members and owes them the one hour

wage specified in the statute.

Moreover, the declarations and testimony establish all that operators and lab

employees work under the same shift supervision, have the same work rules applied

to them, and are treated the same with respect to meal periods. The Named

Plaintiffs and Class members work a continuous shift and are required to remain in


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their units while eating. They are not allowed to turn off radios and must remain in

communication during the entire shift (including while eating a meal). Indeed, the

employer maintains kitchen facilities in the control buildings of each unit; a

practice which allows employees to respond quickly in the event they are needed

while eating. Finally, they are required to respond to interruptions involving

routine work assignments. See Perez v. Safety-Kleen Sys., Inc., 253 F.R.D. 508,

516 (N.D. Cal. 2008) (holding that there was a triable issue of fact with regard to

whether Plaintiffs were relieved of all duty during their breaks or whether they were

required to be available to work at all times). Because these common facts show

that Named Plaintiffs and Class members are required to eat meals while on-duty,

the alleged violation of California’s meal period results from the Defendant’s

uniform practice. As a result, common issues predominate over any individual

issues. See Brown v. Federal Express Corp., 249 F.R.D. 580, 584 (C.D. Cal. 2008)

(holding that Plaintiffs can prevail on motion for class certification if “they

demonstrate that [defendant’s] policies deprived them of [meal] breaks.”).

Second, it is undisputed that the Defendant does not track whether any of the

proposed class members take a meal period. There is no requirement that an

employee or supervisor record meal periods. Nor is there a policy or procedure in

place governing meal periods. It is undisputed that all class members eat meals

when they can and that they have complete discretion as to when (or even whether)

to take a meal period during a shift. This practice is uniform for all class members.

The Named Plaintiffs contend that the practice violates California law

because employers subject to Section 226.7 and Wage Order 1-2001 have a

mandatory obligation to provide qualifying employees with meal periods specified.

There is no dispute that the Defendant is subject to Section 226.7 and Wage Order

1-2001. See Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529, 533 (S.D. Cal.

2008) (stating that employers have a “mandatory duty to provide the meal period.”);

Brown v. Federal Express Corp., 249 F.R.D. 580, 586 (C.D. Cal. 2008) (holding


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that employers have “an obligation to make [meal] breaks available”) (citing

Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 962-63 (2006)); Perez v.

Safety-Kleen Systems, No. 05-5338, 2007 WL 1848037, *7 (N.D. Cal. June 27,

2007) (“At the very least, … the Wage Order requires the employer to affirmatively

provide a meal break and provide the opportunity for the employee to be ‘relieved

of all duty during a 30 minute period.’”). Indeed, in Cicairos, the court held that an

employer has an “obligation to provide plaintiffs with an adequate meal period

[that] is not satisfied by assuming that the meal periods were taken, because

employers have ‘an affirmative obligation to ensure that workers are actually

relieved of all duty.’” 133 Cal. App. 4th at 962 (quoting Dept. of Industrial

Relations, DLSE, Opinion Letter No. 2002.01.28 (Jan. 28, 2002) p. 1).

Again, the Defendant’s practice of simply permitting or allowing Named

plaintiffs and class members to eat a meal is a uniform practice. Thus, even if the

Court determines that the Defendant’s practice of requiring Named Plaintiffs and

Class members to eat meals while on duty is consistent with California law, a class

is still appropriate given the Defendant’s uniform failure to affirmatively provide

meal periods.

The Defendant will likely rely on the “logic” of Brinker Restaurant Corp. v.

Superior Court, 165 Cal. App. 4th 25 (2008), review granted and opinion

superseded (Oct. 22, 2008) for the proposition that a class cannot be certified

because individual issues predominate. First, as to Plaintiffs’ first legal theory (i.e.,

an on duty meal period does not comply with the law), the Brinker decision has no

import even if the Court were inclined to still follow the opinion. There are no

individualized issues on this theory because all class members were denied an off-

duty meal period on every continuous shift they worked. The Plaintiffs are

contending that the meal breaks provided to class members are not “meal periods”

under California law.

With respect to the second theory, Plaintiffs recognize that their reasoning


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conflicts with the reasoning used in Brinker. The key to the Brinker decision,

however, was the holding that California law only requires an employer to permit

or allow employees to take a meal period. Because it was undisputed that the

employer allowed employees to have a meal period (as defined under California

law), the issue of whether an employee actually took a meal period was determined

to be too individualized. However, if Brinker was incorrectly decided and the

Cicairos case had it right, then class certification is appropriate because the focus is

on the Defendant’s conduct. In this case, it is undisputed that the Defendant took

no affirmative steps to provide class members with the appropriate number of meal

periods during their shifts.

Finally, even if the Court decides that the California Supreme Court will

adopt the outcome and reasoning in Brinker, common issues still predominate over

individualized ones because, unlike the employer in Brinker, the Defendant has not

“made available” a 30 minute meal period. Even if the Defendant is not required

to ensure that class members take the appropriate number of meal periods (e.g.,

two meal periods for a 12 hour shift), the Defendant is required to provide a defined

30 minute meal period. In the case at bar, the Defendant has failed to even meet

Brinker’s less demanding interpretation.

In Brinker, the Defendant had a written policy that was signed by employees

and which clearly stated that employees were entitled to a thirty minute meal break

when working a shift lasting longer than five hours. Brinker, 165 Cal. App. 4th at

32.7 The Brinker court noted that this fact, among others, distinguished the Perez

v. Saftety-Kleen Systems, 2007 WL 1848037 (N.D. Cal.) case from the facts in

Brinker. The failure to promulgate a written policy and to inform employees of

their right to take a 30 minute meal period for every 5 hours worked supported the 7 In Brinker, the meal period dispute largely centered around the timing of the meal period. Employees complained that the employer forced them to take a meal period during the first hour of their shift. In this case, the Defendant does not force employees to take a meal period. Indeed, the Defendant is not even aware when or if class members take a meal period.


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conclusion that the employer has not “made available” a meal period under

California law.

Unlike the employer in Brinker, the Defendant has no policy or procedure for

providing meal periods. The Defendant also does not require supervisors or

employees to record meal periods, the effect being that the Defendant does not

know whether employees are taking meal periods. Telling employees that they can

eat when their duties permit does not satisfy the requirement of making a 30 minute

meal period available. In effect, this means that employees decide whether the

Defendant is complying with California law, a scenario clearly at odds with the

employer’s obligation to provide a 30 minute meal period. Thus, even if Brinker’s

interpretation is ultimately adopted, it does not preclude a finding of predominance

in this case.8

b. Common Issues Predominate With Respect to Plaintiffs’ UCL

Claims.

UCL claims are appropriate for class treatment as the California Supreme

Court has repeatedly held that relief under the UCL is available without

“individualized proof of deception, reliance, and injury[.]” Bank of the West v. Sup.

Ct., 2 Cal. 4th 1254, 1267 (1992) (citing Comm. on Children’s Television, Inc. v.

Gen. Foods Corp., 35 Cal. 3d 197, 198 (1983)); Mass. Mut. Life Ins. Co. v. Sup.

Ct., 97 Cal. App. 4th 1282, 1289-95 (2002) (certifying UCL and CLRA claims

arising out of deceptive product sales based on omissions of material facts even

where transactions involved face-to-face sales presentations). The UCL’s unlawful

prong borrows violations of other statutes such as the California Labor Code and

orders of the California Industrial Welfare Commission and makes them

independently actionable. See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 8An important factor in Brinker that precluded certification was the finding that each individual restaurant implemented individualized practices to ensure compliance with meal period break policies. In this case, all three refineries are under the same practice; namely, class members decide whether to take a meal period.


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1042, 1048 (9th Cir. 2000); Stevens v. Sup. Ct., 75 Cal. App. 4th 594, 606 (1999)

(statutory violations may form basis under UCL). Because the UCL “borrows”

violations of other statutes, if Plaintiffs prove that Defendant’s violated Section

226.7 and Wage Order 1-2001 in failing to provide required meal breaks, Plaintiffs

will have also proven that Defendant violated the UCL.

If Defendant has violated the UCL, Plaintiffs and Class members' right to

restitution automatically flows from that violation. Defendant retains and should be

able to access information regarding the number of hours worked during each shift

for each member of the Class. Norris Decl. at ¶ 14. Such a restitutionary

disgorgement remedy is available under the UCL and appropriate on a class-wide

basis to redress such conduct. Kraus v. Trinity Mgmt. Servs., 23 Cal. 4th 116, 127

(2000). Such remedy is appropriate, since the purpose of the UCL is to foreclose a

defendant from retaining any of its ill-gotten gains obtained as a result of their

illegal business practices. Bank of the W. v. Sup. Ct., 2 Cal. 4th 1254, 1267 (1992)

(“The Legislature considered this purpose so important that it authorized courts to

order restitution without individualized proof of deception, reliance, and injury if

necessary to prevent the use or employment of an unfair practice. . . . One

requirement of such enforcement is a basic policy that those who have engaged in

proscribed conduct surrender all profits flowing therefrom.”) (citations omitted).

The appropriate measure of such a restitutionary remedy is another predominant

common question for resolution at trial.

Whether Defendant’s conduct was unlawful, fraudulent, or unfair will not be

decided based on facts peculiar to each Class member but based on a single set of

facts applicable to all since knowledge of the wrongful conduct is not relevant

under the UCL. Fletcher v. Sec. Pac. Nat’l Bank, 23 Cal. 3d 442, 453 (1979). The

UCL claims therefore raise predominant common issues.

2. A Class Action is Superior to Individual Adjudication

a. Superiority is Present


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Finally, Rule 23(b)(3) provides that certification is appropriate if class

treatment "is superior to other available methods for the fair and efficient

adjudication of the controversy." The test here is not whether class cases are

superior to hundreds of individual actions (though in this case they are), but

whether it is superior compared to other group-wide methods of resolution available

to adjudicate this controversy. NASDAQ, 169 F.R.D. at 527.

Because this action rests primarily upon Defendant’s failure to provide the

requisite meal breaks mandated under California law, individual Class members

will have little or no interest in individually controlling the prosecution of this

action. See Fed. R. Civ. Proc. 23(b)(3)(A). As no Notice of Related Case has been

filed, this action is the only one presently proceeding to enforce the rights and

remedies available against Defendant. See Fed. R. Civ. Proc. 23(b)(3)(B). Because

all of the Refineries where the class members are employed are located within the

state of California, concentration of the litigation in this forum is desirable. In

addition, Plaintiffs' claims will completely or largely resolve the claims of other

Class members, rendering duplicative actions wasteful and inefficient. See Fed. R.

Civ. Proc. 23(b)(3)(C).

The relevant consideration for this aspect of class certification is not a group

claims versus no claim being prosecuted. As the Court held in Hanlon, 150 F.3d at

1023, “from either a judicial or litigant viewpoint, there is no advantage in

individual members controlling the prosecution of separate actions. There would

be less litigation or settlement leverage, significantly reduced resources and no

greater prospect for recovery.” The same conclusion applies with equal force here.

The proposed Class satisfies all the requirements of Rule 23(b)(3).

b. Trial of the Class Claims Would be Manageable

This case can be efficiently tried on a class-wide basis. The focus of this trial

will be exclusively on ConocoPhillips and its conduct. As set forth above, this

action does not present varied individual factual issues. Indeed, the facts in this


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case are largely undisputed. Rather, common issues predominate and the claims of

all class members are subject to common proof. Indeed, requiring each of the

hundreds of class members to pursue an individual action on their own behalf

simply to prove the same facts would result in duplicative litigation that would

create significant inefficiencies and manageability issues. Because proof in this

litigation in terms of Defendant’s liability will come from Defendant and little if

any information will be required from the individual Class members, resolution of

this action on a class-wide basis is manageable. See Fed. R. Civ. Proc. 23(b)(3)(D).

D. Certification is Also Warranted Under Rule (b)(2)

Rule 23(b)(2) provides for certification where a defendant has “acted or

refused to act on grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory relief with respect to

the class as a whole.” A (b)(2) class should be certified for equitable relief claims

“if the class members complain of a pattern or practice that is generally applicable

to the class as a whole.” Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998).

This is precisely what Plaintiffs allege here. Defendant’s failure to provide class

members with meal periods as required under California law is a pattern of conduct

applicable to the Class as a whole. That uniform pattern of conduct is sufficient to

entitle Named Plaintiffs to a declaration that of their rights and the obligations of

Defendant under California law. The uniform pattern of conduct also gives rise to

plaintiffs’ claim for an injunction prohibiting Defendant from failing to provide

Named Plaintiffs and Class members with meal breaks in violation of California

law and failing to pay them premium rates for meal periods worked.

That Plaintiffs also seek damages and restitution is not an impediment to

certifying a (b)(2) class. Class certification under Rule (b)(2) in an action that seeks

both injunctive and monetary relief is appropriate where the claim for damages is

“incidental” to the claims for injunctive and/or declaratory relief. See Zinser, 253

F.3d at 1195. In this case, once a violation of the relevant law is determined to


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have occurred, monetary damages will automatically flow from that violations, thus

justifying (b)(2) certification.

Rule (b)(2) certification is also appropriate because Plaintiffs here would

bring suit to obtain injunctive relief even in the absence of possible monetary

recover. In Wang v. Chinese Daily News, Inc., 231 F.R.D. 602, 615 (C.D. Cal.

2005), the Court certified both a (b)(2) and (b)(3) class where plaintiffs alleged that

Defendant refused to comply with California wage and hour laws. The court found

that the plaintiffs would bring suit to obtain injunctive relief even in the absence of

possible monetary recover and that injunctive relief was necessary and appropriate

to protect defendant’s employees. Id. at 611-12. Therefore, the Court held,

because “the monetary relief claims do not predominate in this case but rather

appear to be on equal footing with the claims for injunctive relief, the Court

certifies the class pursuant to Rule 23(b)(2).” Id. at 612.

Likewise, in this case, even in the absence of possible monetary recovery,

plaintiffs here would bring suit to obtain injunctive relief to prevent Defendant from

uniformly failing to provide meal periods required under California law to plaintiffs

and class members. Injunctive relief is also reasonably necessary and appropriate

to protect the Plaintiffs and Class members from future harm. Therefore, this case

can thus also be certified to proceed as a class action pursuant to Rule 23(b)(2).

IV. CONCLUSION

Plaintiffs request this Court certify this case to proceed on behalf of the Class,

and appoint Plaintiffs as the class representatives and their counsel as class counsel.

DATED: December 15, 2008 Respectfully submitted, By: /s/ Robert A. Cantore Jay Smith Joshua F. Young Gilbert & Sackman 3699 Wilshire Boulevard, Suite 1200 Los Angeles, CA 90010-2732

Joe R. Whatley Richard P. Rouco Whatley Drake & Kallas, LLC 2001 Park Place North Suite 1000 Birmingham, Alabama 35203

Attorneys for Plaintiffs


robert a. cantore (california bar no. 127462) · 2017. 6. 19. · liforn. ia bar no. 127462) jay...

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